Reed v. Heard

53 So. 400, 97 Miss. 743

• Court: Mississippi Supreme Court
• Decided: October 15, 1910
• Status: Published

Opinion

Mates, C. J.,

delivered the opinion of the court.

John A. Heed brought-an ejectment suit against J. F. Heard to recover possession of forty acres of land, located in Tallahatchie county, and described as the W. ½ of N. W. ¼, section 24, township 25, range 2 W., east of the bayoii. The declaration alleges that the land sought to be recovered is all the land in the W. ¼ of the above quarter -section situated east of the bayou. The title of Heed depends- upon the validity of a tax sale made by the tax collector on June 2, 1902, for the delinquent tax of 1901. The land in question was assessed in the year 1900 on the regular land roll, and this roll was made up and approved as required by law and used by the sheriff at the time of the sale. A part of this land, containing forty acres, was owned by and assessed to one W. D1. Buford, and that part not assessed to W. D. Buford was assessed to “Unknown.” We give the exact description of both tracts as they appear on the assessment roll. W. D. Buford is assessed with “forty acres in the W. ½ of N. W. Sec. 24, T. 25, N. 2 W., west of the bayou.” “Unknown” is assessed with forty acres in the W. ½ of N. W. ¼, section 24, township 25, range 2 W. Mr. Buford paid the tax assessed on his forty-acre tract- for the year 1901, and has receipt for same; but the tax on the forty acres assessed to “Unknown” was not paid for the year 1901, and in May, 1902, the supervisors made the following order in reference to the sale of land delinquent for nonpayment of taxes in the year 1901, viz.: “It is ordered by the board that N J. Thompson, sheriff and tax collector of this county, proceed on the first Monday of June next-to sell all land delinquent for nonpayment of taxes for the year 1901 heretofore not sold, after giving notice by advertisement of sale as prescribed by law.” This order was made on the 7th of May, 1902. On the 2d day of June, 1902, the land in question was sold for the tax of 1901, and bought by J. A. Heed. The deed was made on the 9th day of June, 1902, and that day filed in the office of the chancery cleric at Charleston, the county seat of the first district, but was not recorded until the 15th day of Nov■ember, 1907.

One of the contentions made by appellee is that the tax sale was void, because not made at the proper place. The facts bearing on this point are as follows, viz.: The legislature of 1902, by an act approved in February, directed the division of the ■county of Tallahatchie into two circuit and chancery court disr tricts. It is claimed that at the time of the sale of this land for .taxes the sale was made in Charleston, in the first district; whereas, the land lay in the second district, of which Sumner was the ■county seat. It seems that the election resulting in the selection of Sumner as the county seat in the second district had been held as provided for by the act, prior to the June meeting of the board; but tire report of the election commissioners was not made to the board, and there was no official action of the board declaring the result of the election until the June meeting, 1902,.which was the meeting next after the tax collector had been ordered to make sale of delinquent tax land. Up to the June meeting, and ■on the 2d day of June, no county seat for the second district had been established anywhere, and the sale of the land in question was made at Charleston, the only county seat then in existence, ■and on the 2d day of June, the very day that this report was made. It also appears from the record that the board did not ■establish any courthouse for the said second district until the 1th of June, 1902, two days after the sale, and the first official .•act of the clerk in the new district seems to have been on the 10th of June. Heard bought the land from one Vance some time in 1903, and paid taxes on same from that time until the institution of this suit.

The cause was tried before the court without a jury, and at the conclusion of the testimony a judgment was rendered in favor of Heard, and tire tax title declared a nullity. From this judgment an appeal is prosecuted to this court. There are a great many contentions urged by counsel for appellee, many of which are not of sufficient importance to notice here, so we content ourselves with a discussion of only those questions which we deem material.

It is contended that this title is void, because the sale was made at the wrong place. As to this contention little need be said. The sale was made at the only county seat then in Tallahatchie county. While it is true that the legislature passed an act creating another district, and that this act was passed in February previous to the sale, it is also true that the legislature referred back to the citizens of the county, for popular choice, the question of where the county seat for the second district should be located, and this question was not settled at the time of the tax ■sale. It is clear that the legislature did not intend to interfere with the organization of the county until there had been a complete identification of the seat of government in the second district, and the governmental functions of the county were, and ■should have been, conducted in the county seat of the first district until the two districts were put in complete operation.

It is next contended that the tax sale is void, because the tax deed was not filed in the office of the clerk of the chancery court, as required by Code 1906, § 4338 (section 3823, Code 1892.) It is contended that the deed was filed on the 9th of June in the office of the clerk in the first district at Charleston; whereas, the land lay in the second district, and the deed should have been filed by the tax collector there. The answer of this contention is twofold: First, it appears that the chancery clerk’s office at ’Sumner, in the second district, did not really open until the 10th ■day of June, one day after the filing of the deed by the tax collector in the office of the clerk at Charleston, the place where the •sale was made ; and, second, the deed was properly filed at the place where the lawful sale was made, which was Charleston.

It is next insisted by appellee' that the tax deed is void for ■uncertainty in description, and the case of Smith v. Brothers, 86 Miss. 241, 38 South. 353, is relied on. The description in the deed shows that “forty acres in the W. % of N. W. %” was conveyed to Reed by the tax collector. Buford’s tax assessment and tax receipt, aided by his oral testimony, show that Buford owned, paid the taxes on, and was assessed with “forty acres in the W. % of N. W. %” of the same section lying west of the bayou. Since there are only eighty acres lying in the W. % of N. W. %, and forty acres lying west of the bayou are assessed to Buford, it necessarily follows that the remaining forty, assessed to “Unknown,” was the land conveyed by the tax deed, and parol testimony was admissible to apply the description. This case falls within the provisions of Code 1892, § 3776, Code 1906, § 4285, providing that “parol testimony shall always be admissible to apply a description of land on the assessment roll, or in a conveyance for taxes, where such testimony will show what land was assessed and sold, and there is enough in the description on the roll or conveyance to be applied to a particular tract of land by the aid of such testimony.”

The facts of this case bring it within the rule announced in Mixon v. Clevenger, 74 Miss. 67, 20 South. 148, and the case of Smith v. Brothers, 86 Miss. 241, 38 South. 353, has no application to the facts of this case. We will discuss the case of Smith v. Brothers, supra, a little later, suffice it here to say that it did not overrule or refer to the case of Mixon v. Clevenger, 74 Miss. 67, 20 South. 148, which is now,- and must continue to be the law of this state until there is a repeal of Code 1906, § 2485. The case now under consideration by the court is a much stronger one for the application of Code 1906, § 4285 (Code 1892, § 3776), admitting parol testimony to apply a description on the assessment roll, etc., than was the case of Mixon v. Clevenger, 74 Miss. 67, 20 South. 148, supra. In Mixon v. Clevenger no specific number of acres was stated, but the land was simply assessed as the “E. ½ west of Bowie, section 32, Twp. 5 N., range 13 west,” and the court held that even on this description the statute applied, and parol testimony would be admissible to apply the description. In the case we are now considering, the description is of “forty acres in the W. ½ of N. W. ¼ section 24, Twp. 25, K. 2 W.” Clearly the statute applies here, since the assessment rolls show that forty acres of the W. ½ of N. W. ¼ west of the bayou is assessed to and owned by Buford, and the only other forty in the tract is bound to be the forty assessed to “Unknown,” since that makes up the complete number of acres in the above subdivision.

The case of Smith v. Brothers was doubtless decided as it ought to have been. The description in Smith v. Brothers, 86 Miss. 241, 38 South. 353, was as follows: “Home lot 6, block 4, ward 1.” This description was held to be a nullity, and the tax deed under it a nullity. In the above description there were no fixed boundaries by which the description of the land might be definitely and accurately ascertained, either in the assessment or the deed. The’whole of the description'would necessarily have to be made out by parol testimony, and the statute does not provide that this may be done; but parol testimony is permissible to apply a description of land on -the assessment roll, etc., where such testimony will show what land was assessed and sold, and there is enough in the description on the roll or conveyance to be applied to a particular tract of land by the aid of such testimony. Code 1906, § 4285. In the case of Smith v. Brothers it does not appear that there was enough in the description on the rolls to identify the lands by parol, and of course the statute had no application.

We have no fault to find with the decision in the above case,but the language is broad and misleading when it is sought to apply it to any but its own facts. Bowers v. Andrews, 52 Miss. 596, is not the law of this state as to what shall constitute a sufficient description of land in an assessment, and has not been the law of this state since the adoption of Code 1880, § 491, which became Code 1892, § 3776, and Code 1906, § 4285. The above sections of the Code were adopted for the very purpose of abolishing the rule laid'down in Bowers v. Andrews, supra. Of course, the sections above do not permit parol testimony to supply a description where a totally void description appears on the assessment roll or tax deed; but such testimony may always be resorted to, whether the ambiguity is patent or latent, where such testimony will show what land was assessed and sold, and there is enough in the description on the roll or conveyance to be applied to a particular tract of land by the aid of such testimony. Section 4332, Code 1906 (section 3817, Code 1892), provides what defense may be made to a tax collector’s deed, and this section is exclusive of all others. It says that the tax collector’s deed “shall vest in the purchaser a perfect title to the land sold for taxes, subject to the right of redemption; and no such conveyance shall be invalidated in any court except by proof that the land was not liable to sale for taxes, or that the taxes for which the land was sold had been paid before sale, or that the sale had been made at the wrong time or place.”

Not one of the causes enumerated in the above section as furnishing a defense to a tax deed existed in this case. Of course, section 4332 presupposes that the land has been validly assessed, and the valid assessment means that it has been described in such a way as that it is accurately described in the assessment roll or tax deed, or may be accurately described by resorting to the provisions of Code 1906, § 4285, Code 1892, § 3776. The legislature may, and has, provided what shall be .a sufficient description and how it shall be established, if the method is such as to point out with certainty the land assessed. Of course, this must be done 'in some way provided by the legislature. The law imposes some duty ou the taxpayer, as- well as the tax assessor.

The case of Smith v. Brothers is overruled, insofar as it conflicts with this decision.

The decree is reversed and cause remanded.